Israel-Gaza Conflict: Arrest Warrants

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 25 November.

“Last Thursday, judges at the International Criminal Court issued arrest warrants for the Israeli Prime Minister Benjamin Netanyahu, former Defence Minister Yoav Gallant and the reportedly deceased Mohammed Diab Ibrahim al-Masri, commonly known as Deif, commander-in-chief of the military wing of Hamas.

The ICC is the primary international institution for investigating and prosecuting the most serious crimes of international concern. It is actively investigating allegations of the gravest crimes in countries around the world, including Ukraine, Sudan and Libya. In line with this Government’s stated commitment to the rule of law, we respect the independence of the ICC. We will comply with our international obligations. There is a domestic legal process through our independent courts that determines whether to endorse an arrest warrant by the ICC in accordance with the International Criminal Court Act 2001. That process has never been tested, because the UK has never been visited by an ICC indictee. If there were such a visit to the UK, there would be a court process, and due process would be followed in relation to those issues.

There is no moral equivalence between Israel, a democracy, and Hamas and Lebanese Hezbollah, two terrorist organisations. This Government have been clear that Israel has a right to defend itself in accordance with international law. That right is not under question, and the court’s approval of the warrants last week does not change that. Israel is of course a partner across UK priorities, including trade, investment, security, and science and technology. We co-operate across a wide range of issues for our mutual benefit.

This Government remain focused on pushing for an immediate ceasefire to bring an end to the devastating violence in Gaza. That is essential to protect civilians, ensure the release of hostages and increase humanitarian aid into Gaza. We have always said that diplomacy is what will see an end to this conflict, and that can be achieved only through dialogue. It is in the long-term interests of the Israelis, Palestinians and the wider region to agree to a ceasefire deal urgently and bring this devastating conflict to an end”.

15:31:00

My Lords, yesterday I wrote to the noble and learned Lord the Attorney-General and explained that under the International Criminal Court Act 2001, a domestic UK statute, Prime Minister Netanyahu, as the serving Prime Minister of a state that is not a party to the ICC, continued to enjoy immunity from arrest and legal process. Can the Minister confirm which of these two alternatives reflects the Government’s position: is it that the moment he steps on to British soil Mr Netanyahu should be arrested and, after a court process, handed over to the ICC, or is it that his immunity should be respected, as provided for in a domestic Act of Parliament? Of course, the ultimate decision will be taken by the High Court. But what is the Government’s position on this critical issue?

My Lords, I thank the noble Lord, Lord Wolfson of Tredegar, for his point, and I have seen the letter he wrote to the Attorney-General. It raises an important point and a question of law. There are two pieces of law here, both of which the Government respect but which need to be fought out in a court. That is the right way to resolve this and that is the process that would happen should we receive a warrant and should Mr Netanyahu visit the United Kingdom.

My Lords, that legislation allows only the ICC to issue a waiver on immunity, so can the Minister confirm whether such a waiver from the ICC has been provided? The Minister in the House of Commons said yesterday that it is for the courts to endorse the warrant. My understanding is that that is not correct. Under the legislation, it is the Secretary of State only who endorses the warrant and then passes it on to a judicial officer. It is then for the courts to determine whether they will deliver that person—if that person is in the UK—to the ICC in The Hague. Can the Minister confirm that the Secretary of State will endorse the ICC warrant?

My Lords, we will comply with our obligations under our membership of the ICC. My understanding is slightly different from the noble Lord’s in that, as of now, the warrants are not issued to all signatories to the ICC. The warrant would be issued should it become known that Mr Netanyahu intended to travel to the United Kingdom. As noble Lords will appreciate, as yet we have not received any such warrant.

Does the Minister agree that although many of the actions of the Israeli Government in Lebanon, the West Bank and Gaza are grossly disproportionate, none the less the issue of the warrant is profoundly unhelpful and that it would be a good idea if, to the extent possible, we put it into the long grass?

The helpfulness or otherwise is not really at question. The ICC is independent of the United Kingdom Government, and rightly so. We will comply with our obligations as a member of the ICC.

My Lords, I think the House deserves an answer from the Government to the question put by the noble Lord, Lord Wolfson, particularly as we have a debate later on the rule of law. So how do the Government interpret Section 23 of the International Criminal Court Act 2001, which is domestic law? The ICC and the Rome statute is one issue, but the other issue is domestic law, which seems pretty clear. The Minister batted it to the courts. I think it is important to know the Government’s legal interpretation of Section 23.

I do not think I batted it away. I gave an accurate description of the Government’s position. It is not unprecedented for two pieces of law to cut across each other. The right way to resolve this is through the courts. Unlike some Members opposite, although happily by no means all, we accept our obligations under international law.

My Lords, like the decision not to supply arms to Israel, this was a political decision, not a legal decision. Does the Minister agree that the decision taken in respect of the ICC is simply weaponising international justice and confirms many people’s opinion that the ICC is more a political tool than an international arbiter?

On both questions, I am afraid that I disagree with the noble Lord. That is not how we view the ICC. We respect the ICC and our obligations as a signatory to it. As for the decisions on export licences, those were made in compliance with UK law.

My Lords, does the Minister agree that there is a misunderstanding by the noble Viscount, Lord Hailsham, if he thinks that this is a matter concerning proportionality with regard to self-defence? Warrants have been issued very specifically not in relation to disproportionate use of self-defence. They have been issued on the basis of the refusal to allow humanitarian aid to reach the civilian population of Gaza. That was the basis for the warrants being issued: the starvation that follows from that and the impact in particular on young children’s development and survival possibilities. I want to ask a supplementary question. It is very important that people in this House know that the International Criminal Court is not indicting Israel. It is indicting two of its leaders who have conducted this war. Normally the principle of complementarity would have meant that we would respect the courts of Israel to investigate and deal with the matter. That was blocked by Prime Minister Netanyahu. Do the Government agree that because that avenue of complementarity was not available, after the opportunity had been given for an inquiry or an investigation by the Israeli authorities, warrants were issued for that reason? Does the Minister agree that it is about the people of Palestine being deprived of humanitarian aid?

My noble friend is correct in that the warrants are for war crimes of starvation, intentional attacks on civilians and other inhumane acts. I point out to noble Lords that the indictment is not a finding of guilt. It is the start of a process. There would theoretically be a court process that would investigate all the alleged crimes.

My Lords, the first principle of the rule of law, according to Lord Bingham, is that rules must be “intelligible, clear and predictable”. I echo the question asked by the noble Baroness, Lady Ludford, from the angle of international law: the Government say they are committed to the international rule of law, which means being committed to the conduct of foreign relations under clear and predictable rules, yet say they do not know whether those rules, including customary international law rules on immunity, would mandate or preclude the arrest of Prime Minister Netanyahu.

That is right. The issue is that this has never happened. We have never had a serving Head of State subject to an ICC warrant visit the UK. We have had situations under European arrest warrants and the situation with Pinochet, but we have never had this. We need to see the warrant; it needs to be seen by the court, which needs to make a determination at that point.

My Lords, US Senators have rightly threatened sanctions against allies if they co-operate with the International Criminal Court’s decision on this matter. Is the Minister concerned that our diplomatic ties with our closest ally could be harmed if we do not speak out against the ICC’s political decision to issue arrest warrants for the Prime Minister of Israel and the former Defence Minister?

It is not my understanding that that is the position of the United States. One or two Senators may have made comments, but that is not the position of President Biden; nor do I think it is the position of incoming President Trump, based on what he has already said. We do not view the ICC as a political organisation or treat it politically. For the UK to sanction or pick and choose whom it thinks ought to be subject to an ICC judgment would undermine the entire institution. It is an institution that I respect and it saddens me that the party of Winston Churchill does not on this issue.